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Supreme Court 6 August 2004

R v Mirad

[2004] NSWSC 701

HomicidePublic order & justice offences
CRIMINAL LAW SENTENCING ACCESSORY AFTER THE FACT OF MURDER

Citation: R v Mirad [2004] NSWSC 701
Court: Supreme Court of New South Wales
Date: 6 August 2004
Judge(s): Barr J

Background

In the early hours of 13 December 2002, a group of men arrived at the Playhouse Hotel in Sefton, where a birthday celebration was underway for a separate group with whom they had prior violent history. Two members of the arriving group, Joseph and Youmaran, retrieved pistols from the car driven by the offender and re-entered the hotel, where they fired at least thirty shots, killing the deceased.

The offender did not participate in the shooting. Instead, after his companions retrieved the firearms and returned to the hotel, he moved the car to the exit of the car park and waited. When Joseph and Youmaran returned, he drove them away from the scene. The two shooters subsequently disappeared and were never brought to justice.

The offender surrendered himself to police on 11 March 2003, accompanied by his father. He was initially charged with murder, but later pleaded guilty to the lesser charge of being an accessory after the fact of murder, following an indication from the Crown that it would not pursue the murder charge if such a plea were entered.

  • What was the appropriate sentence for an offence of accessory after the fact of murder, having regard to the objective seriousness of the conduct?
  • Whether mitigating factors, including absence of premeditation, panic, and the limited duration of the assistance, reduced the gravity of the offence.
  • How to weigh the offender's subjective circumstances, including his voluntary surrender, guilty plea, time spent in protective custody, and personal background.
  • Whether the offender could properly be regarded as a person of good character for sentencing purposes.

Decision

Barr J found the offence was objectively serious. The central element of the offender's criminality was providing an effective means of escape to two known murderers at a critical moment. The court rejected the submission that the short duration and limited distance of the drive diminished the seriousness of the conduct. The assistance was timely, effective, and allowed the shooters to evade capture entirely.

The court also rejected the submissions that the offender acted without premeditation or out of fear and panic. The offender exercised his right not to give evidence and provided no explanation for his actions. The court found it was clear he knew the firearms were in the car and, when Joseph and Youmaran returned to confront the other group, he moved the vehicle to a strategically advantageous position for escape. That repositioning of the car, the court held, itself involved significant premeditation.

On subjective matters, the court noted the offender's voluntary surrender and his plea of guilty at the earliest opportunity once the Crown's position was confirmed. Both were treated as evidence of a possible desire to leave criminal associations behind. His time on remand was found to have been more onerous than usual because he was held in protective custody throughout, due to retaliatory threats and violence directed at his family by associates of the deceased in the days following the murder.

Despite those mitigating factors, the court declined to treat the offender as a person of good character. He had prior convictions for violent disorder, had been involved in a fight at a nightclub in October 2002, and was in the company of armed men on the night in question, including one of bad character with whom he had an established association.

Orders Made

  • The offender is sentenced to imprisonment for two years and six months, commencing 11 March 2003 and expiring 10 September 2005.
  • A non-parole period of one year and six months is fixed, expiring 10 September 2004.
  • The offender is to be released to parole on 10 September 2004.

Key Takeaways

  • Providing a getaway vehicle to murderers, even for a brief journey of only a few kilometres, can constitute a serious instance of accessory after the fact of murder where the assistance was timely and enabled the principal offenders to evade justice entirely.
  • A submission that an accessory acted without premeditation was rejected where the offender had repositioned the vehicle to the car park exit in anticipation of the shooters' return, a step the court characterised as deliberate and calculated.
  • Voluntary surrender to police and an early guilty plea, while not accompanied by expressed remorse, were nonetheless treated as evidence of a possible intention to rehabilitate, and attracted a substantial discount in sentencing.
  • The period spent in protective custody was recognised as a relevant hardship factor, given that it restricted the offender's access to educational, recreational, and rehabilitative facilities available to other remand prisoners.
  • A parole period exceeding one quarter of the head sentence was warranted where the sentencing court identified a combination of factors: a possible desire to lead a law-abiding life, the fact that this was the offender's first custodial sentence, and a need for support in obtaining employment and avoiding contact with persons of bad character.

Legislation and Cases Referenced

No specific legislation or cases were cited in the text of the judgment or in the metadata provided.